Shrawan Kumar vs Usha Devi @ Usha Kumari
2024 Latest Caselaw 9654 Jhar

Jharkhand High Court

Shrawan Kumar vs Usha Devi @ Usha Kumari on 26 September, 2024

Author: Ratnaker Bhengra

Bench: Ratnaker Bhengra, Sanjay Prasad

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Appellate Jurisdiction)
                  F.A. No. 150 of 2022
                       ---------

Shrawan Kumar ..... Appellant Versus Usha Devi @ Usha Kumari ..... Respondent

----------

CORAM:HON'BLE MR. JUSTICE RATNAKER BHENGRA HON'BLE MR. JUSTICE SANJAY PRASAD

---------

For the Appellant : Mr. Atanu Banerjee, Advocate For the Respondent : None

---------

Reserved on 13.03.2024 Pronounced on 26.09.2024 The present First Appeal has been filed on behalf of the Appellant challenging the Judgment dated 21.09.2022 and Decree dated 29.09.2022, passed in Original Suit No. 286 of 2020 by Shri Anil Kumar Pandey, Additional Principal Judge-II, Additional Family Court, Ranchi, by which the Original Suit filed on behalf of the Appellant under Section 9 of the Hindu Marriage Act has been dismissed.

2. The case of the Appellant, in brief, is that the Appellant is aged about 58 years and the marriage of Appellant with the respondent was solemnized on 19.02.1984 according to Hindu rites and customs and they are husband and wife. Out of the said wedlock two children, namely Prabhat Kumar and Pradeep Kumar were born. Respondent is a Government Teacher at Sri Doranda Kanya Pathsala, Ranchi and in the year 2022, she used to get Rs.62,354/-. The elder son teaches in coaching center

and younger son works in America. Both have good income per month. Appellant used to sell copy, pencil on footpath and the Respondent used to quarrel with the Appellant and used to tell him to stop such work as she is ready to bear his expenses. The Appellant did not accept the proposal of the respondent. So, the respondent and her elder son ousted him from the house in 2012. The Appellant is living separately from the respondent and his children since 2012. Due to his increasing age he has poor vision due to which he is not getting any job. He anyhow is able to arrange his food, clothes etc. with the help of neighbours and others. The respondent has been living in Blue Diamond Apartment, Hatia along with her son and leading a luxurious life while the Appellant is unable to earn even a single penny and is dependent on others. So, the Respondent may be directed for restitution of conjugal right u/s 9 of the Hindu Marriage Act and a prayer has also been made for a direction to give him Rs.25,000/- per month for contesting the case.

3. As per show-cause filed by the Respondent in the Original Suit No. 286 of 2020, the marriage between Appellant and respondent on 19.02.1984 has been admitted and stated that the Appellant's age, is false since, as per his Matriculation Certificate, he is about 56 years old as his date of birth is 05 October 1964. It has been stated that since the day of marriage to till date, the Appellant has been exerting cruelty, torture, domestic violence and assault etc. up on the

respondent. A criminal case was filed by Respondent against the Appellant u/s 498(A) I.P.C and in that case judgment was passed on 19.12.2016 in G.R Case No-3355/2012. The Appellant has been awarded sentence of two years imprisonment and to pay the fine of Rs. 1,000/-. The Respondent had also filed a Complaint Case 1873/2017 against the Appellant for her defamation u/s 499/500 I.P.C for harming her reputation by a false and deliberate defamatory statement.

It has also been pointed out that the Appellant had also filed Maintenance Case 208/2014 u/s 125 Cr.P.C which had been rejected on 27.05.2015 and Matrimonial Case 334/2015 filed under Section 10, 13(i-a), 13 (i-b), 24 and 25 of the Hindu Marriage Act, which was dismissed by the Additional Principal Judge, Family Court, Ranchi on 20.04.2018. The Respondent denied to pay maintenance allowance and to reside with the Appellant. It has been also submitted by the respondent that the statement of Appellant is false to the effect that his elder son is running Coaching Centre and the real fact is that the elder son of respondent is doing job in Sankalp Semi Conductor Company in Hubli. Only respondent and the Appellant were residing in the house. The Appellant used to quarrel and abuse the respondent that her father did not give dowry and so it is obligatory on her part to give all her earnings to him and he used to beat her on her objection to his allegation. On 18th May 2012, when the respondent was going to

fetch milk, he ordered her to bring pocket of chocolate for his shop. When she told him that she had no money in her possession, then all of sudden, the Appellant attacked her and thrashed her on the floor and tried to kill her by strangulating her with fastening her Dupatta on her neck, but any how she became successful to loosen the grip of the Appellant and fled outside the house. She reported this incident to Mahila P.S, Ranchi and left the Appellant's house and went to her parent's rented residence at Hatia, Ranchi. After this incidence, she never came back to Appellant's house due to fear of her life.

The Appellant has not taken any plea that during long period of about 12 years he admitted to fetch his wife in his society. The Appellant, therefore, must fail on this ground alone as it means that Appellant does not want restitution of conjugal rights with his wife, rather he is only interested in getting money from her in shelter of Section-24 of Hindu Marriage Act.

It is also stated that the Appellant was not driven out from his house, rather it is the respondent, who left his house in fear of her life because the Appellant is very cruel and obstinate having no regard for conjugal value with his wife. The Appellant in his daily domestic dealing with wife cried foul, using filthy languages connecting female body organs, indecent exposure which is intolerable for any self-respecting wife and fear of life compelled her to leave the house of petitioner forever. It is one

of the excuse for the Respondent to withdraw from society of the Appellant.

It has also been stated that in his petition for maintenance u/s 125 Cr.P.C in O.M Case No- 208/2014, Appellant had stated, inter-alia, that the respondent was in extra-marital relationship with others as mentioned in Para-3, 7 & 8 and which was Annexure-4 to the show-cause filed in Original Suit No. 286 of 2020. This statement in open public view cannot be dismissed lightly by any self-respecting wife. This gives rise to reasonable excuse to the respondent to withdraw from the society of the Appellant. The Appellant, in his M.T.S Case No- 334/2015 filed against the respondent, has clearly stated that he has been living separately for last seven years. He has also made allegation of extra- marital affair of his wife and on that ground he has prayed for judicial separation and divorce. Though, that case was dismissed and as per his admission in that case, now the Appellant and respondent has been living separately for last twelve years. He has also filed a complaint before the S.S.P, Ranchi alleging therein that his wife and Dr. Rajendra Prasad Choudhary are in an extra-marital relationship. This also gives rise to reasonable excuse for the respondent-wife to withdraw from the society of the Appellant. On 21.06.2016, the Appellant made publication about the Respondent in Hindi daily newspaper stating therein that Respondent has extra- marital relationship with others and his sons has mortgaged his land. Both

these allegations are totally false and mischievous, defamatory and with an intention for tarnishing the image of the respondent and her son, which is also a reasonable excuses to withdraw from the society of the Appellant.

All these allegations are painful and mental torture to the respondent for her whole life which cannot be pardoned and is considered eligible for decree of dismissal of the petition of the Appellant herein for restitution of conjugal rights in limine. It is stated in the show-cause that the Appellant himself has disclosed his income as Rs. 90,000/- per year i.e. approximately Rs. 8,000/- per month which is more than sufficient for comfortable living of the Appellant. This certificate has also been issued by the Circle Officer. Apart from this, the Appellant has got two plots of land in Doranda Bazar (Main Road) Vide Deed No. - 8261/1990 and Deed No.- 5797/ 1997. A Pucca building comprising three rooms upon that plot and other empty plot of land the Appellant cultivate vegetables and stocks some saleable building material. The Husband-Appellant is bound to maintain his wife and he cannot make himself wholly dependent upon the income of his wife through the device of Section-24 of the Act. He is also not eligible for any maintenance u/s 24 of Hindu Marriage Act. Hence, his petition for restitution of conjugal rights u/s 9 is liable to be dismissed.

4. Heard learned counsel for the Appellant, however, none appears on behalf of the respondent, although Notice was issued upon the

Respondent and vide order dated 08.5.2023, Notice was deemed to be validly served upon the respondent and the case was fixed under the heading "For final disposal" vide order dated 01.12.2023 passed by the Co-ordinate Bench of this Court..

5. Learned counsel for the Appellant submitted that the judgment passed by the learned Court below is illegal, arbitrary and not sustainable in the eye of law as the learned Court below has not appreciated the evidence of both the sides.

It is submitted that the learned Court below has failed to take into consideration the material facts while passing the impugned judgment and has committed a grave error of law and facts.

It is submitted that the respondent Usha Devi @ Usha Kumari is residing with her elder son Prabhat Kumar in the said Blue Diamond Apartment, which is apparent from the evidences brought on the record of the case and respondent and her son have expelled him from the house without any reasonable cause and her husband is not able to earn for his livelihood.

It is submitted that the second son of the Appellant namely Pradeep Kumar is residing in United States of America and he is also under control of his mother Usha Devi and hence they did not hear a single word from the Appellant and they do not have any concern with the pitiable condition of the Appellant.

It is submitted that the learned Court did not appreciate the factual matrix and evidences

adduced before the learned Court below which clearly shows that the respondent doesn't want to live with the Appellant and even after several efforts, she refused to live with the Appellant.

It is submitted that the learned Court below has failed to take into consideration that during the deposition the Appellant has stated that the respondent has been doing cruel behaviour to the Appellant and ousted him in the year 2012. The respondent used to stop the Appellant from doing his job such as selling of pen and pencil etc. on the footpath without any reasonable cause.

It is submitted that several times the Appellant visited to her parent's house for her Bidai but of no use and there is only desertion between the parties and nothing else. The respondent does not take any step for maintaining conjugal relationship with the Appellant.

It is submitted that the learned Court below has failed to take into consideration that the Appellant is still ready and willing to lead his conjugal life with the respondent whereas respondent has flatly refused to come back and join the society and company with the Appellant.

It is submitted that the learned Court below has failed to take into consideration while passing the impugned judgment that the respondent had lodged the criminal case against the Appellant and his entire family members.

It is submitted that learned Court below has failed to take into consideration that the Appellant

has visited the house of the parent's of respondent several times, and each and every time, respondent has objected to meet him It is submitted that the learned Court below has failed to take into consideration that the Appellant is an old and aged person and suffering from ailment and living separately and want to take back respondent but she is adamant in not joining the society of the Appellant.

It is submitted that the Court below has committed illegality by observing that wife has reasonable cause for living separately.

It is submitted that there is no provision of presumption in Hindu Marriage Act for living separately on its own.

It is further submitted that no allegation has been levelled against the wife-respondent in the plaint by the Plaintiff-Appellant regarding her extra marital relationship, however, the Court below has put much emphasis on cross-examination of the Appellant in Paragraph 45, 46 and 48 of his deposition, i.e. deposition of A.W. 1 that the Appellant has raised allegation about the extra marital relationship of his wife with other person and for having illicit relationship with some other person and also for calling the respondent as sister-in-law instead of Sister by one Dr. Rajendra Prasad Chowdhary. Thus, the learned Court below has committed illegality by dismissing the suit, hence the impugned Judgment and Decree, passed in Original Suit No. 286 of 2020

by the learned Court below may be set aside and this First Appeal may be allowed.

6. Perused the records of this case and considered the submission of both the sides.

7. It transpires that the Plaintiff-Appellant have filed Original Matrimonial Suit No. 286 of 2020 in the Court of Principal Judge, Family Court, Ranchi on 15.07.2020, which was transferred to the Court of learned Additional Principal Judge, Additional Family Court, Ranchi on 16.07.2020.

8. It transpires that the defendant-

Respondent, i.e. the wife had filed her show-cause- cum-written statement on 09.02.2021 and hence, has pointed out several facts about the Appellant which were suppressed by him in the plaint.

9. From the pleadings of the plaint it would appear that the Plaintiff-Appellant have filed Suit No. 286 of 2020 under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights with the respondent on the ground that he has been ousted by the Respondent and her elder son in the year 2012 and now he is living separately from them. However, due to old age and ailment and also on account of poor vision and for doing day to day works he needs the company of the Respondent. It has been stated that the Respondent is his wife and she is earning Rs.62,354/- as salary and residing along with her son in Blue Diamond Apartment near Hesag, Hatia.

10. The Opposite Party-Respondent has also filed her show-cause on 09.02.2021 stating therein that she was married on 19.02.1984 with the

Appellant but due to extreme cruelty, torture and domestic violence committed by the Appellant, she has been compelled to live separately. It has been stated that on 18.05.2012, the Plaintiff-Appellant even tried to kill her by strangulating her by using her Dupatta after thrashing her on the floor and for which she had instituted F.I.R. through Mahila Thana P.S. Case No. 22/2012 (G.R. No. 3355 of 2012) for which the Plaintiff-Appellant remained in jail for more than three (03) months and due to fear of her life, the respondent left the house of the Appellant on 21.05.2012. Even the Appellant was convicted under Section 498-A of the I.P.C. vide judgment dated 15.02.2016 in the said Mahila Thana P.S. Case No. 22 of 2012, G.R. No. 3355 of 2012 by the Trial Court and the learned Trial Court below also imposed punishment of Simple Imprisonment for a period of two years.

11. It is also stated that due to act of the Appellant she was compelled to file defamation case bearing Complaint Case No. 1873/2017 against the petitioner under Section 499/500 I.P.C. for harming her reputation by a false and deliberate defamatory statement. Even she has filed Cr.M.P. Case No. 2886 of 2017, which is pending in the High Court. She further disclosed that the Appellant had also filed maintenance Case No. 208 of 2014 under Section 125 Cr.P.C. against the respondent, which was rejected vide Order dated 27.05.2015, passed by the learned Principal Judge, Family Court, Ranchi. Even the Appellant had filed M.T.S. Case No. 334 of 2015 under Section 10, 13(i-a), 13 (i-b), 24 and 25 of Hindu

Marriage Act, 1955, which was dismissed vide judgment dated 20.04.2018 passed by the learned Additional Principal Judge, Family Court, Ranchi.

12. Thereafter, the learned Court below had framed following issues.

I. Whether the present suit is maintainable in its present form?

II. Whether the petitioner has valid cause of action to file the present suit?

              III. Whether            the    opposite      party     (wife)
                     without          reasonable        excuse        has

withdrawn herself from the society of the petitioner (husband)?

              IV. Whether             the     petitioner     is    taking
                     advantage of his own wrong?
              V. Whether              the    applicant-husband           is

entitled for a decree of restitution of conjugal right?

VI. Whether the applicant is entitled to get any other relief or reliefs as prayed for?

13. The Plaintiff-Appellant, in support of his case has got examined four witnesses, who are as follows:-

(i) A.W. 1 is Shrawan Kumar,

(ii) A.W.2 is Ibrahim Ansari,

(iii) A.W.3 is Akshay Lal Gupta,

(iv) A.W.4 is Prahalad Prasad

14. The Plaintiff-Appellant, in support of his case, has got following documents marked for identification, which are as follows:-

(i) Mark X is Standard Format of the Certificate dated 06.12.2014,

(ii) Mark X/1 is Discharge Slip of Sadar Hospital, Ailment and Prescription.

15. On the other hand, respondent-wife had got examined herself as OPW 1.

16. The respondent-wife had got following documents proved as the exhibits, which are as follows:

(i) Ext. A is Certified copy of Order dated 20.04.2018 passed in M.T.S. 334 of 2015,

(ii) Ext. B is Certified copy of the Judgment passed in G.R. No. 3355 of 2012.

17. The respondent-wife, in support of her case, has got marked following documents for identification:-

(i) Mark Y is Photo Copy of Admit Card of Bihar School Examination Board,

(ii) Mark Y/1 is Photo copy of Matriculation Certificate.

18. Thereafter, the Court below, after hearing both the sides, passed the impugned Judgment and Decree.

19. From perusal of the impugned judgment and decree passed by the learned Court below, it would appear that the learned Court below has, while dismissing the suit has observed that levelling of false allegation with regard to extra-marital relation against the wife amounts to mental cruelty.

The Court below further observed that even the Hon'ble Supreme Court has held in Vijayakumar Ramchandra Bhate vrs. Neela Vijay kumar Bhate reported in 2003 (6) SCC 334 that unproved allegations of unchastity amounts to cruelty and therefore, said allegation has given mental agony to the wife and in this situation, it is not possible for the wife-Respondent to live together with her Husband-Appellant and wife has got reasonable cause to leave the society of the husband.

The Court below also observed that many cases have been filed by both the parties against each other.

It has been further observed by the learned Court below that both the parties are not in cohabitation for the last 17 years and this is a case of irretrievable break down of marriage and it is not possible for respondent-wife and Husband-Appellant to live together as husband and wife and had decided issue No. III, IV and V against the Appellant.

20. The learned Court below further observed that the Appellant has got no cause of action for the instant suit and the suit is not maintainable and decide the issue No. I against the petitioner- Appellant.

Apart from this, the learned Court below has further dismissed the claim of the Appellant under Section 25 of the Hindu Marriage Act for grant of permanent alimony by deciding Issue No. VI against the Appellant, hence, the evidence is being looked into.

21. Before entering into merit of the case, it is pertinent to mention here that the petitioner- Appellant has got filed the present appeal through Jharkhand High Court Legal Services Committee and got instituted this case through one empaneled lawyer of Jharkhand High Court Legal Services Authority. Although it has come in the judgment of the learned Principal Judge that the plaintiff has got his own house and some agricultural land.

22. So far as oral evidence is concerned, A.W. 1 is the Appellant-Shrawan Kumar, who has filed his evidence on an affidavit stating therein that the suit has been filed for decree of restitution of conjugal rights and for maintenance. He was married to the respondent 38 years ago and has got two children and he had not misbehaved with his wife in any manner. Out of their marital wedlock, respondent Usha Devi has given birth to two sons, namely Prabhat Kumar and Pradeep Kumar, who are attached with the Respondent and are well to do. He also stated that the Respondent is a Government Teacher and presently posted as Teacher in Doranda Kanya Pathshala, Doranda and is earning Rs. 62,354/-. Her elder son is teaching in a Coaching Centre, whereas the younger son is working in America and both of his sons are earning substantially. The Appellant from the very beginning used to sell copy, Pencil by putting a stall at the Footpath, which was opposed by the respondent and for which she used to quarrel with the Appellant and asked him to remain in the house and wanted to maintain the expenses of both. But this was not

accepted by the Appellant and ultimately the respondent in association with her elder son ousted him from the house in the year 2012. However, the Appellant is passing his time with pain and difficulty by living separately from the respondent and his sons and also in view of the fact that he is not able to work due to his old age and has now poor vision in his eyes and he is being helped by his neighbours and acquainted person and hence, he requires company of the respondent-wife. His wife is well-settled and earning salary of Rs.62,354/- and presently she is residing in Blue Diamond Apartment, Flat No.F-5, Fourth Floor, Near Hesag, Hatia, P.S. Jagannathpur, Ranchi with her son and leading her life lavishly. He had produced photocopy of the certificates showing Diabetes and Eye problems, which have been marked as 'X' and 'X/1' respectively as the public document.

23. However, during cross-examination the witness admitted that his date of birth is 05.10.1964 on being shown Admit Card and certificate of Matric, which was marked as 'Y', he showed his ignorance for instituting a case of maintenance against the respondent.

24. On his further cross-examination, he admitted to have instituted three cases of maintenance against his wife and T.M.S Case, which were filed by him against the wife, had been dismissed. Thereafter, he instituted a case in the year 2008, which was also dismissed. He also admitted to have withdrawn the M.T.S. Case and also for instituting several other cases. He admitted for withdrawing M.T.S. Case No.

334 of 2015. He also admitted for instituting M.T.S. Case No. 334 of 2015 for grant of divorce, judicial separation and maintenance. However, prayer for maintenance was dismissed. However, subsequently he also admitted for withdrawing the issue of divorce and judicial separation. He further admitted for instituting both cases, i.e M.T.S. 334/15 and M.T.S. 334/2016. However, he is not aware of the result of the case of judicial separation, which was instituted in the year 2016. He is claiming maintenance from his wife because he is not in a position to work. He admitted that his wife is living separately from him since last 15 years. He admitted for wrongly stating in Paragraph 7 of the affidavit that he has become homeless and he admitted for living in the same address, i.e. address mentioned in the plaint. He is not aware of the monthly salary of his wife, but she was earning Rs.62,354/- in the year 2020. He also admitted that Flat No. F-5 of Blue Diamond Apartment stands in the name of his elder son Prabhat Kumar.

He further admitted in Para 42 of his evidence that he had completed construction in his house No. 351 at Doranda in the year 2012, but he does not remember the expenditure of constructing the said house and he had purchased the land in the year 1990. He admitted for instituting one Maintenance Case No. 208 of 2014 against his wife, however, he denied for stating the love affairs with several persons of his wife in the said Maintenance case. However, he admitted for mentioning the wrong relation of his wife with Dr. Rajendra Prasad

Chowdhary at Para 10 of said Matrimonial Case No. 208 of 2014. He claimed to have letter pad of Dr. Rajendra Prasad Chowdhary dated 29.08.2005 for the wrong relationship of his wife with him because in the said letter, he had mentioned his wife as Sister-in-Law instead of Sister. He denied the suggestion that Letter dated 29.08.2005 was rejected in the Revision Case by the Court of learned Judicial Commissioner. His wife Usha Devi is residing in Blue Diamon Apartment at Flat No. F-5, Hesag, Hatia, P.S. Jagannathpur, which stands in the name of his son and for which he has got paper. He further admitted in Paragraph No. 50 of his cross-examination for submitting one application bearing Complaint Petition No. 291/ DCC dated 21.01.2015 before the S.S.P., Ranchi for complaining illicit relationship of his wife with Dr. Rajendra Prasad Chowdhary.

25. Thus, from scrutinizing the evidence of A.W.1, i.e. the Appellant, it is evident that he left no stone unturned for raising the wrong illicit relationship of his wife, i.e. Respondent with one Dr. Rajendra Prasad Chowdhary and for her love affairs with other persons by filing Maintenance Case No.208 of 2014. His conduct clearly shows that he has caused great mental agony and pain in the mind of his wife by stating such humiliating and scandalous statements and he has questioned the character of the respondent-wife for none of her fault and thus, the learned Court below committed no illegality by rejecting the evidence of the Plaintiff-Appellant.

The unscrupulous and humiliating statement by the Appellant clearly shows that he has no respect for his wife and he has blamed his wife and has raised question on the chastity and integrity and the character of his wife not only in M.T.S. Case No. 334 of 2016, Maintenance Case No. 208 of 2014, but also by filing a petition before Senior Superintendent of Police, Ranchi. He even admitted that he has already constructed his house at Doranda in the year 2012 over the land, which was purchased by him in the year 1990, whereas his wife is living in Flat No. 5 of Blue Diamond Apartment, Hesag, Ranchi standing in the name of his elder son Prabhat Kumar.

26. Thus, the evidence of A.W.1 is not reliable and has been correctly rejected by the learned Court below.

27. A.W. 2 is Ibrahim Ansari, who has filed his evidence on an affidavit stating therein that the Appellant was married with Usha Devi and they have got two sons, namely Prabhat Kumar, aged 35 years and Pradeep Kumar, aged 31 years and they are married for last 38 years and the Appellant had never misbehaved with his wife. Their two sons, Prabhat Kumar and Pradeep Kumar are attached with the respondent Usha Devi and are well placed. The respondent is a Teacher in the Doranda Kanya Pathshala and her earning is Rs.62,354/-, whereas his eldest son is Teaching in a Coaching Centre and his younger son is working in America. However, the Appellant is a senior citizen and has got several ailments, i.e. poor vision in his eyes, Sugar etc. The

Appellant is managing somehow through his neighbour and acquainted person and hence, he needs certain help in his old age. It is also stated that Prabhat Kumar, who is the son of the applicant- Appellant, is son-in-law of one Jai Shankar Prasad, Advocate (Enrolment No. 32/95).

28. During cross-examination, he admitted that he has no connection with the respondent, but he is acquainted with the Appellant. He also admitted that he has no family relationship with the respondent Usha Devi, but he used to talk with her and his shop is situated at Doranda. He is not aware of the salary of the Opposite Party.

29. Thus, from scrutinizing the evidence of A.W.2, namely Inbrahim Ansari, it is evident that he has stated almost the same fact on the point of marital status of the Appellant during the evidence filed on an affidavit as stated by the A.W.1 during evidence except the fact that his elder son Prabhat Kumar is son-in- law Shri Jaishankar Prasad, Advocate.

30. Thus, evidence of A.W.2 is not reliable and has been rightly disbelieved and rejected by the learned Court below.

31. A.W.No. 3 is Akshay Lal. He also stated the same fact by filing an affidavit as stated by A.W.1 and A.W.2 and as such his evidence is not being repeated here.

However, he further stated that the wife of the Appellant had instituted a false case bearing G.R. No. 3355 of 2012, F.I.R No. 22 of 2012 and in the said case the Appellant has been acquitted in Criminal

Appeal No. 07 of 2017 on 31.08.2017 by Shri Shyam Nandan Tiwari, learned A.J.C.-VIII, Ranchi. However, he also stated that the Appellant had instituted O.M. No. 208 of 2014 under Section 125 Cr.P.C. on 27.05.2015 in the Family Court, Ranchi, which was dismissed as non-maintainable by the learned Family Court, Ranchi.

32. During Cross examination, he stated that the Appellant is suffering from Diabetes and even his vision is poor but he is not aware of capacity of vision of the Appellant. He also admitted that he was a Lecturer and he has retired from Hatia college.

33. Thus, from scrutinizing the evidence of A.W.3, it is evident that he has been set up by the Appellant. From the evidence of A.W.3, it is evident that he is a formal witness and has tried to support the case of the Appellant, but he could not succeed and thus, the evidence of A.W.3 is not reliable.

34. A.W.4 is Prahlad Prasad, who has also stated the same fact as stated by A.W.3 during his evidence by filing an affidavit and as such the same is not being repeated here and he has also tried to support the case of the Appellant.

35. However, during his cross-examination he tried to support the contention of the Appellant that his wife may be directed to live with him in order to look after him. He also admitted that both the sides are living separately for last 16-17 years and there is not cohabitation between them and several cases were filed between both of them. He admitted that the Appellant is living at Manitola Kathpol, Pathar Road at

Doranda and he goes to the house of the Appellant. He admitted that the Appellant Shrawan Kumar has also constructed his house but he cannot say the cost of the construction. However, he denied that the Appellant had made expenditure of 25.00 lakhs while constructing his house. He further stated that the Appellant had got 40% disability in Vision.

36. Thus, from scrutinizing the evidence of this A.W.4, it is evident that he is a formal witness and tried to support the case of the Appellant, however, from the cross-examination, it is evident that he admitted that even the Appellant had constructed his own house at Doranda, though he had denied the cost of construction of Rs.25,00,000/-. Nonetheless, it is evident that the Appellant had got sufficient means to maintain himself. He has also suppressed the fact of instituting several cases against the Respondent-Wife during his evidence and in view of the above, the evidence of A.W.4 is not reliable and is rightly rejected by the learned Court below.

37. So far as evidence of Respondent-Wife is concerned, O.P.W 1 is Usha Kumari. She has also filed her evidence on an affidavit stating therein that the age of the petitioner as declared by him in his petition is false and the age of the petitioner is 56 years on the date of filing of the case as on 06.4.2005, as per his Matriculation Certificate. She further stated that the Appellant tried to kill her on 18.5.2012 and for which she has instituted F.I.R. No. 22 of 2012, G.R. No. 3355 of 2012 and for which the petitioner was convicted and he had also remained in jail after

institution of the said case. She stated that she has been compelled to file Complaint Case No. 1873 of 2015 against the Appellant who had defamed her depicting her as a Prostitute.

She further stated that the Appellant had filed Maintenance Case No. 208 of 2014, which was rejected on 27.5.2015 by the learned Court below.

The Appellant had also filed M.T.S. No. 334 of 2015 seeking Divorce/judicial separation and interim maintenance. However, when his claim for pendentelite maintenance was dismissed, then he withdrew the M.T.S. No. 334 of 2015.

She has been forced to live separately in isolation due to several frivolous cases instituted against her by the Appellant in the last 10 years. She also stated that after 12 years of separation and since there is no cohabitation for last 17 years, the Appellant cannot be allowed to live with the same woman, whom he had driven away from the house. The respondent had been subjected to cruelty and desertion on the date of filing Divorce petition and this is a case of irretrievable break down of marriage as parties are living separately for the last 12 years. Thus, the case filed by the petitioner under Section 9 of the Hindu Marriage Act and petition under Section 24 of the Act for grant of maintenance is not maintainable.

38. During cross-examination, she admitted her marriage with the Appellant, which was solemnized on 19.02.1984 and she was aged around 23 years. She further clarified that due to clerical

mistake, her father's name has been typed as Balram Prasad instead of Baliram Prasad in the affidavit filed for evidence. She further stated for not disclosing her real address and she has concealed her real address to save herself from her husband and she does not remain continuously at one address. She admitted to have passed 11th Class in the year 1980 and concluded PTT course in the year 1978-80. She admitted that at the time of her marriage her father- in-law and mother-in-law, two Devar and Two Nanad and one Nandosi were present in her matrimonial home and after her marriage, her two Devar also performed their marriage and she had attended the marriage of both of her Devar. Her marriage was an arranged marriage with the approval of guardians of both the sides. Presently, she has become physically weak and not able to do fasting although she used to observe Teej and Jitiya after marriage, but after getting tortured by her husband, she has left everything. She lastly performed Satyanarayan Puja with her husband after the marriage but her husband never performed Diwali, Dushhera, Chatt Puja etc. with her. Even Mundan of both her sons were not done properly. Her eldest son is married, however, her husband was not invited to the marriage of her eldest son and her eldest son had got one son, aged about two years and she had not informed her husband of the birth of the grand-son. She denied the suggestion for not inviting her husband to participate in Puja etc. which was performed as per Hindu customs.

She further stated that at the time of her marriage, her husband was doing the work of Compounder with Dr. Haricharan at Nawada. Thereafter, he worked with Dr. Sharda Sahay at Patna and thereafter, he started working in Contract at H.E.C. and even her husband worked as a Munshi in Indian Scrap Company, Dipa Toli and thereafter, he started a Stationery Shop at Kali Mandir Road, Doranda and her husband constructed and her husband lives in his house No. 351 near Kathpul and has even kept one Tenant in the said house and he used to do business of stocking house material on rent in the vacant land. However, she is not aware of income of her husband. She admitted for instituting a case of torture and domestic violence against her husband in which her husband was convicted by J.F.M.C. Trial Court-10, but her husband was acquitted in the appeal and thereafter, she had filed acquittal appeal before the Jharkhand High Court, which is still pending. She also admitted for instituting a case of defamation against her husband apart from the cases instituted for torture and domestic violence. She is not aware of ailment of her husband and his case of suffering from Depression, Sugar and Blood Pressure are false and concocted. She admitted to be a regular Teacher in Doranda Kanya Pathshala since the year 1982 and this School is a Minority School (Govt. aided School) and she had received salary in her Bank Account. Now, she has retired from the service in the year 2021. She further stated that there is no relationship of Husband and

Wife between the Appellant and the Respondent and she does not want to live with her Husband. However, she denied the suggestion for not living with her husband on the ground that her husband is less educated and earns less and also on the ground of mismatch relationship.

39. Thus, from scrutinizing the evidence of O.P.W.1, i.e. the respondent-wife, it is evident that her marriage was solemnized with the Appellant on 19.02.1984 and she was ousted from her matrimonial home by her Husband on 20.05.2012. She has also been compelled to live separately from her husband and after 28 years of marriage her husband finally ousted her. She has shown various instances that her Husband questioned her character on several occasions and assaulted. Hence, due to fear of her life and also in order to save herself, she is living separately from her husband. From the contents of the writing of his show-cause and evidence of P.W.1, it is evident that the findings of the learned Principal Judge is proper and also in view of the fact that a wife cannot be compelled to live with such husband who questions her character and when the wife has reasonable apprehension of danger to her life.

40. So far as documentary evidence is concerned, document marked 'X' for identification is photocopy of certificate issued by the Office of Civil Surgeon-cum-Chief Medical Officer (C.M.O.), Sadar Hospital, Ranchi showing Visual disability of the Appellant as 40% issued on 06.12.2014.

Document marked X/1 for identification is the prescription of Sadar Hospital, Ranchi, by which the petitioner was advised for X-Ray and some medicines.

41. So far as the documentary evidence of Wife-Respondent is concerned, Ext. A is the certified copy of Order dated 20.04.2018 passed by the learned Addl. Principle Judge, Additional Family Court, Ranchi in M.T.S. Case No. 334 of 2015 by which the prayer for Ad- interim-Maintenance Petition filed under Section 24 of the Hindu Marriage Act by the Appellant has been rejected. The learned Additional Family Judge has rejected the claim of the petitioner for grant of Ad-Interim Maintenance Case under the Hindu Marriage Act.

Ext. B is the judgment dated 19.12.2016 passed by Shri Akhilesh Kumar Tiwari, then learned J.M., Ist Class, Ranchi in G.R.No. 3355 of 2012 bearing T.R. No. 120 of 2016, by which the Appellant was convicted for the offence under Section 498-A of the I.P.C. and sentenced to undergo R.I. for the period of two years and to pay the fine of Rs.1,000/-.

42. Thus, from the discussions made above, it is evident that the petitioner has filed the suit before the learned Court below after long period of more than Seven years/around eight years for grant of decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act after dismissal/disposal of M.T.S. No. 334 of 2015 on 20.04.2018 which was filed under Section 10, 13(i-a), 13 (i-b), 24 and 25 of the Hindu Marriage Act and his petition under Section 125 of the Cr.P.C. vide Maintenance Case No. 208 of 2014 was rejected. Apart from this, it is evident that he had filed the Suit No. 334 of 2015 for grant of decree of divorce/judicial separation, ad-interim maintenance and litigation cost of Rs.25,000/- etc.

However, his claim for Ad-Interim Maintenance under Section 24 of the Hindu Marriage Act was rejected by the learned Court below and then he withdrew M.T.S. No. 334 of 2015.

43. Even the Appellant instituted Maintenance Case No. 208 of 2014 against the respondent for maintenance, which was also rightly rejected on 27.05.2015 by the learned Court below.

44. The Appellant had even submitted a petition before the Senior S.P., Ranchi on 21.01.2015 alleging illicit relationship of his wife with Dr. Rajendra Prasad Chowdhary by making wild allegations. The Appellant even raised question on the character of the respondent of having affairs with several persons in M.T.S. 334 of 2015 and for her extra marital relationship with Dr. Rajendra Prasad Chowdhary and which were suppressed by him at the time of filing of the plaint.

45. Therefore, this is a case where a husband has put enormous torture upon his wife by questioning her character and suspecting her of having illicit extra marital relationship with Dr. Rajendra Prasad Chowdhary.

Thus, in this case the petitioner does not deserve relief of restitution of conjugal rights under Section 9 of the Hindu Marriage Act. After dismissal of Maintenance Case No. 208 of 2014 and after dismissal of his claim of interim maintenance even in M.T.S. No. 334 of 2015, the Plaintiff-Appellant cannot demand maintenance from his wife.

46. This also amounts to suppression of fact by the Appellant as he had instituted M.T.S. No. 334 of 2015 and Maintenance Case No.208 of 2014.

47. Thus, this Court finds that the petitioner- Appellant has failed to make out any case for grant of Decree of restitution of conjugal rights.

48. Thus, on the facts and in the circumstances mentioned above, it is evident that the petitioner has failed to make out a case for restitution of conjugal rights under Section 9 of the Hindu Marriage Act.

49. Therefore, we concur with the finding of the learned Court below. Accordingly, the Judgment dated 21.09.2022 and Decree dated 29.09.2022, passed in Original Suit No. 286 of 2020 by Shri Anil Kumar Pandey, Additional Principal Judge-II, Additional Family Court, Ranchi is hereby upheld.

50. Thus, this First Appeal is dismissed with the costs of Rs.10,000/- (Rupees Ten thousand) and the said amount must be paid by the Appellant to the Respondent by depositing the same in the Court of learned Principal Judge, Family Court, Ranchi and which may be disbursed to the wife-Respondent by the learned Court below through process of Nazarath vide Judge-in- Charge through the Para Legal Volunteer of the D.L.S.A., Ranchi at the residence of the Respondent.

51. Let a decree be drawn by the Office accordingly.

52. Before parting with the order, this Court is of the view that the learned Member Secretary, JHALSA and his Office must enquire into the claim of the parties before granting the benefit of filing a case through the Office of JHALSA, i.e. this First Appeal, at the cost of JHALSA and not to the persons like the present Appellant for filing this First Appeal in view of the fact that it has

come during evidence that the Appellant has constructed his own house at Doranda and has got two plots in Ranchi and had not brought the fact of earlier filing of several cases before the Family Court and the Appellant has forced and compelled his wife to contest unnecessary litigations even after dismissal of his M.T.S. No. 334 of 2015 on 20.04.2018, which was filed by him before the Principal Judge, Family court, Ranchi for grant of decree of divorce on the ground of mental cruelty and also for grant of maintenance pendentelite under Section 24 of the Hindu Marriage Act and also the petition filed under Section 25 of the Hindu Marriage Act for grant of permanent alimony and rejection of Maintenance Case No.208 of 2014 on 27.05.2015, which was filed under Section 125 of the Cr.P.C.

The learned Member Secretary, JHALSA must take necessary and proper information from the parties concerned before extending the benefit of Office of JHALSA for filing the case in writing at least, if not on an affidavit, regarding their insufficiency of income for filing the case through JHALSA. A person of sufficient means, like the Appellant may not be allowed to get the benefit of filing of cases through the JHALSA.

(Ratnaker Bhengra, J.)

(Sanjay Prasad, J.) Jharkhand High Court, Ranchi Dated 26.09.2024 N.A.F.R./s.m.